Bob Brown wins his case, but High Court leaves the door open to laws targeting protesters

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Brendan Gogarty does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.

The High Court has ruled today by a 6:1 majority in favour of Bob Brown and Jessica Hoyt’s challenge to the validity of a Tasmanian anti-protest law. The decision is a significant win for forestry and public-interest activists, although it does not go as far as some may have hoped.

The court found the Tasmanian law was unbalanced and unreasonable. However, it affirmed the right of parliaments to target protesters who interfere with business operations.

Despite this, the case will cause many states to review their protest laws.

Background to the case

This came soon after the state had elected a new Liberal government, which had run a significant part of its campaign on a promise to “rebuild” Tasmania’s forestry industry. That included tearing up a peace deal between loggers and conservationists, allowing companies to sue protesters for defamation, and toughening the law to deter protesters.

The Workplace (Protection from Protesters) Act criminalised certain forms of protest that interfered with “business activity” at any “business premises” or “business access area”. This included forestry and other industrial activities on public or private land.

Workplaces are already protected by a range of existing laws. But the Tasmanian act imposed much higher financial and criminal penalties that were easier for police to enforce.

Under the act, police could prevent the commencement or continuation of an on-site political protest that they reasonably believe would, or was about to, prevent, hinder or obstruct a “business activity” at any “business premises” or “business access area”.

This involved, among other things, allowing police to direct protesters to leave and stay away from certain areas for up to three months. Protesters who failed to do this faced fines of up to A$10,000 and four years in jail.

Brown and Hoyt were among a larger group of the first protesters arrested under the act in January 2016. They and other protesters refused to obey police directions to leave a forestry coup at Lapoinya State Forest, in Tasmania’s northwest.

Brown was the first protester to challenge the law’s validity in the High Court. After he did this the state dropped charges against him, due to apparent confusion about which sections of the act he had actually breached.

There was some suspicion that the abandonment of Brown’s charges was also motivated by a desire to circumvent the court challenge. This was amplified when Hoyt’s charges were also dropped after she joined Brown’s action. All of the protesters’ charges were later dropped, and Tasmania sought to have the court challenge discontinued on the grounds that Brown no longer had a “special interest” (or standing) in the matter.

Tasmania subsequently withdrew the challenge to standing in March 2017, after several states and the Commonwealth intervened in the matter. This meant the High Court was only asked to determine the constitutional validity of the Tasmanian law.

Brown and Hoyt argued the act targeted and singled out protesters as a special category without taking into account the importance of protest in a liberal democracy.

They argued that, under the constitutionally protected freedom of political communication, the act was illegitimate and unreasonable: it disproportionately balanced between the need to protect political communication and protect workplaces.

Tasmania argued the act was primarily aimed at protecting business, rather than protest. Some protesters, it argued, posed a special risk to business in the state, and the legislation was narrow and tailored to them. According to Tasmania, protesters still could voice their political views on non-business land or business access areas, ensuring freedom of political communication in the state.

Apart from Western Australia, all states and the Commonwealth joined the action on Tasmania’s side. This suggested concern about the case’s impact on their ability to pass similar laws. Western Australia initially filed to do the same but did not proceed, after its anti-protest bill failed to pass through its parliament.

What did the court find?

The court unanimously found that the act’s stated aims were legitimate. It rejected the assertion that laws that singled out protesters are, of themselves, unconstitutional. However, the court also recognised the Tasmanian law was:

… enacted against a background where protesters, or at least some of them, were perceived to be those persons, or groups, who would cause damage or disrupt economic activities during protests of particular kinds.

That other laws already exist to stop interference with business and forestry operations (regardless of whether someone is a protester or not) was not relevant to the decision. This was because protesters create a “particular mischief” that deserves legislation specific to that mischief. This will give some comfort to states that have similar legislation to Tasmania’s.

Despite legitimately aiming to criminalise disruptive protesters, six judges found the way in which the Tasmanian law sought to achieve this was disproportionate and used unnecessary provisions.

All of the majority judges agreed the legislation was confusing, vague and poorly written.

Justice Gageler described its provisions as creating “Pythonesque absurdity” when applied to various foreseeable public gatherings. He noted that the provisions were not only broad and vague in reach, but seemed to create sanctions and penalties far outside the actual purported interference with a workplace. These were, at best, a “blunt instrument to achieve that purpose”.

In particular, Justice Gaegler was concerned with the lack of justification for the times that people could be sent away from a protest site, and just how far they can be sent. These police powers had no relationship with the actual threat to specific workplace activities at specific sites.

Chief Justice Kiefel, in a joint judgement with Justices Bell and Keane (with Justice Nettle agreeing in a separate judgement), suggested that the act’s vagueness and uncertainty were actually designed to give the act a broader reach than just business or forestry land.

While their judgements considered almost all the act’s operative provisions to be invalid, other judges were much more focused on specific provisions.

Unifying all the judgements was a concern that the part of the act that allowed police to order a person off land on a mere suspicion they were or might interfere with a business activity for a four-day period was arbitrary, and could not be justified. Justice Gordon considered only this provision to be invalid.

However, Justice Edelman considered the act to only cover conduct that was already unlawful by making certain high-threshold and more prominent illegal acts more targeted and specific. He therefore concluded that it was valid in its entirety.

What does it all mean?

The court varied on which parts of the act were invalid. However, the majority of judges declared sufficient parts of the act unconstitutional to ensure it cannot survive in its current state.

So, the current law is no more. Brown and Hoyt won a major victory.

However, the wider contest between protesters and government remains open. The court made it clear there is no “right to protest” per se, nor a restriction on parliaments targeting protesters who they consider go too far in the name of a political cause.

This part of the decision will disappoint some who had hoped that creating a higher threshold of penalties for those who commit a crime for the purposes of protest, should be unconstitutional on the ground that it is never legitimate to single out protest as a crime. So too will the court’s wider avoidance of considering the much more harsh penalties imposed on protesters than other criminal activities that have the same effect.

The decision will also have implications for legal challenges against Tasmania’s other anti-protest laws, which create “safe access zones” to protect women attending abortion clinics. These laws had been put on hold while the High Court considered Brown’s challenge.

The safe access zones legislation allows police to move on or arrest protesters who are 150 metres from an abortion clinic, regardless if they are actually interfering directly with, or are visible to, patients. In Tasmania’s small CBDs, this could effectively stop people protesting at all in the city centre, given the overlapping zones. The lack of tailoring in that legislation may prove a problem.

In many ways, this decision was predictable from the outset of the charges against Brown and the other protesters. The confusion and poorly-constructed Tasmanian legislation made it especially vulnerable to attack. But that has meant the win is against vague and undisciplined drafting, rather than against anti-protest laws more generally.

While many states will now be reviewing their own anti-protest laws, it will be to determine how to make them more specific and targeted to an identified threat to controversial business activities, such as forestry, mining or fracking. They may be slightly buoyed by the court’s unanimous confirmation that they can limit protest activities that interfere with such operations. The public and political war has not ended just yet.